Support

A cookie is a piece of data stored by your browser or device that helps websites like this one recognize return visitors. We use cookies to give you the best experience on BNA.com. Some cookies are also necessary for the technical operation of our website. If you continue browsing, you agree to this site’s use of cookies.

Marketing Services

Bloomberg Next marketing services allow clients to elevate their brands and extend their reach through our established and trusted expertise, enhanced with engaging event production, appealing design, and compelling messaging.

Aug. 17 — Can Pokémon Go and product liability exist in the same reality?

Pokémon Go, developed by Niantic Inc. with input from Nintendo Co., reportedly has
been downloaded more than 100 million times.

Pokémon Go uses GPS and a smart phone camera. Players find, catch, train and battle
creatures called Pokémon (pocket monsters) that appear through augmented reality on
device screens as if they are present in the real world.

The game has drawn praise for getting people off the couch and into their communities.

But a rash of injuries and criminal activity has ensued, inevitably leading some to
ponder whether the game developers can be held liable to players or third parties.

“It's an invitation to mayhem,” Steven Teppler of The Abbott Law Group in Jacksonville,
Fla., told Bloomberg BNA.

Pokémon Go is a “scavenger hunt” encouraging people to go to “an unsupervised open
area” where the risks can't all be accounted for, said Teppler, whose firm is investigating
potential liability in cases where technology results in injury.

But some product liability defense attorneys say ordinary judgment and common sense
still rule. They say any risks of play should be obvious.

And they point to myriad warnings that show up on phone screens when players turn
on the app.

Niantic didn't respond to a media inquiry seeking comment.

Arbitration Agreement

Players who tumble down a cliff, walk into trees, dart into traffic or otherwise hurt
themselves while finding Pokémon may have a tough time suing Niantic or Nintendo in
court, in part because of “click-wrap” terms of service that include a forced arbitration
clause and class action ban, attorneys say.

Users have 30 days from the download to send back an e-mail opting out of the mandatory
individual arbitration. Those who would do so, however, are few—rather like rare Pokémon,
attorneys say.

But friends who play along with subscribers, as well as third parties—for example,
people hit by distracted drivers—aren't bound by the arbitration clause, some attorneys
say.

And Teppler raised the scenario of a player walking around with a child: “Is the child
covered by the arbitration provision? I don't think so,” he said.

People who have suffered injuries, who aren't part of the purchasing group, or who
aren't bound by an arbitration clause, “will pretty much sue along the same lines
as any mass tort,” Teppler said.

Max Kennerly, who represents product liability plaintiffs, said a third-party case
would likely be the first real test of Pokémon Go's liability for personal injuries.

A non-user would have the benefit of avoiding issues involving the user's own negligence,
Kennerly, of Kennerly Loutey LLC in Philadelphia, said.

Which brings us to warnings.

Warning Adequacy

Some Pokémon Go pop-up screens caution users to be alert and aware of their surroundings.

Recent updates have gotten more emphatic.

One warning advises users not to enter dangerous areas while playing Pokémon Go.
Another feature tells would-be player/drivers, “You’re moving too fast!” The game
is disabled unless a button that says “I'm a passenger” is clicked.

Warnings appear every time the app is opened.

The repeated cautions spark lively commentary on social media.

Some players praise this feature as a good reminder to be careful out there.

Others take umbrage at having their common sense insulted, and say Niantic is over-nagging
to cover itself from lawsuits.

Indeed, Niantic has been hit with suits, although not product liability actions. Also
named in the suits were Nintendo Co. and Pokémon Co.

One suit alleges trespassing players have made a Michigan couple's community unsafe.
In another, a New Jersey homeowner alleges players are coming uninvited to his yard
in search of their quarry.

Among the new warnings? Do not play and trespass.

Defense attorney Alexis Kellert, an associate in the Products Liability group at Weil,
Gotshal &
Manges in New York, said a warning claim would have a difficult time succeeding given
that the Pokémon Go warnings appear to be displayed every time the app is opened.

This would increase the frequency of warnings and the number of users who see them,
she said.

Teppler, however, questioned the effectiveness of the warnings.

For example, he said, how would a player know the game has taken him onto private
property, or to a potentially dangerous area, having not been there before.

“You're not playing in the virtual world, you're playing in the physical world,”
Teppler said. That's a bit “harder to fathom,” for most people, he said.

Look In Context

Whether there is a duty to warn of product risks depends on the context of the particular
product.

The publicity associated with Pokémon Go makes the debate about the existence and
the scope of that duty more topical, Philip Quaranta of Wilson, Elser in New York
told Bloomberg BNA.

People are looking at Pokémon Go for the idea of how augmented reality apps will be
treated, he said.

“As a defense lawyer, I look at this as an opportunity for defendants to shape the
law across the country regarding warnings,” Quaranta said. “There is no duty to warn
against a danger that can be immediately sensed by the average person.”

From a defense point of view, the Pokémon Go warnings are “state of the art and very
impressive,” said Quaranta, who has played the game.

“Someone is going to be hard-pressed to say he didn't understand the current warning
or that further information would have altered his conduct.”

Quaranta also said
people bring their life experiences to bear in taking on activities, even if the activity
doesn't specifically caution about a particular hazard.

But Teppler stressed that AR, and Pokémon Go in particular, is new and different.

Real-world lessons don't necessarily translate to the virtual, he said.

“So in your whole life experience, when have you ever played a situation where you
had melded both the virtual world and the real world, and conducted your real world
activities based on what's happening in your virtual environment?”
he asked.

The risk factors in the real world “far outstrip anything that you can build in, into
your logic, in a virtual world,” he said.

Game Design? Heads Down?

The game design also gives rise to a dialogue about potential liability for the app
maker.

Kennerly said in other augmented reality situations, like heads-up displays in cars
and airplanes, “you can see that careful attention was paid towards ensuring that
the user isn't distracted from their environment.”

Pokémon Go is a little bit different, he said: “It's an augmented reality device that
keeps the user's attention focused entirely on their phone. Ever since smartphones
became common, so, too, did accidents involving people distracted by their phones.”

Kennerly added, “This sort of game looks like a perfect setup for causing more of
those types of accidents. Whether or not that's the maker's responsibility is an issue
that may need to be determined case-by-case.”

And Teppler said Pokémon Go requires multitasking, “which is almost impossible to
do.”

You're already looking at one place, he said. “To play the game you have to be crossing
the street looking at your phone.”

He added, “You're actually in the game. You are acting really within the universe
inside the game, when you also have to be aware as a person outside the game of your
surroundings.”

Quaranta said he could envision a scenario where an expert such as a psychologist
said the level of concentration required for the game is distracting.

But he said, “Those things are open and obvious; there is a school of thought that
people who make those distracted allegations should be responsible for their own actions.”

“Whether those are the majority of people, that is for a court to decide,”
he said.

“My own point of view is, I don't think the level of distraction is an excuse to set
aside common sense and ordinary judgment.”

However, he said, “There's going to be a diametric point of view.”

On one side, “you have the principles of responsibility for individual conduct; the
other is, whether this game has somehow caused you to be distracted to the extent
that you need to be warned or the game needs to be redesigned,”
Quaranta said.

“That is an evolution of classic product liability principles to the app economy.”

Third Parties? Distracted Driver?

What about when a distracted user, let's say a driver, hurts someone else? What then?

Whether there was duty owed to the plaintiff is the important threshold question,
Kellert said.

Defense attorney Theodore Tsekerides, a partner in Weil's product liability group,
said generally good arguments exist that a software app developer's duty should not
extend to remote third parties such as people who say they were hurt by someone playing
Pokémon Go while driving.

Since the existence of a duty is a question of law, a case would be dismissed if a
judge agreed no duty was owed, he said.

Causation can pose another problem for plaintiffs.

Quaranta said, “That's a question where the individual responsibility of the car driver
needs to be evaluated.”

A third party as an innocent victim “is an emotional depiction of the issue but I
don't think that sets aside the analysis that people are responsible for their own
actions,” he said.

Should an app developer foresee that someone would play the game while driving?

It's not necessarily foreseeable that people will “set aside their common judgment,
disregard the training they went through then they got a license,”
Quaranta said. “A lot of layers of misuse have to come together at the same time.”

However, he said courts could take different views on whether the app maker has liability.

But Teppler said, “You would have two defendants.”

“It's a high-risk activity. It invites high-risk behavior, and something that invites
high-risk behavior should be more strictly construed against the offeror of that high-risk
activity,” he said.

To contact the reporter on this story: Julie A. Steinberg in Washington at
jsteinberg@bna.com

All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to books@bna.com.

Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)

Notify me when updates are available (No standing order will be created).

This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to research@bna.com.

Put me on standing order

Notify me when new releases are available (no standing order will be created)